The matrimonial property regime with cross-border relation

Der eheliche Güterstand mit grenzüberschreitendem Bezug

On 24th of June 2016, the EU Council adopted Regulation (EU) 2016/1103 in order to achieve enhanced cooperation in the area of ​​jurisdiction, applicable law, including the recognition and enforcement of decisions in the matter of matrimonial property regime. In principle, the regulation is applicable from January 29th 2019 and from that date on, not in all EU Member States.

This Regulation entered into force directly in 18 Member States, including Germany and Croatia, hence in Belgium, Bulgaria, the Czech Republic, Germany, Greece, Spain, France, Croatia, Italy, Cyprus, Luxembourg, Malta, the Netherlands, Austria, Portugal , Slovenia, Finland and Sweden.

This Regulation applies to matrimonial property regimes with cross-border relation, especially marriages closed after 29th of January 2019 for spouses with different nationalities or when their joint residence after marriage  is abroad.

The Regulation includes the provisions on jurisdiction, applicable law, recognition, enforceability and enforcement of judgments, public documents and judicial settlements.

The matrimonial property regime with cross-border relation in Croatia was governed by the Law on the resolution of collisions with regulations of other countries in certain relations. As of January 29th 2019, this law is replaced by the new EU Regulation, which is also interesting for German citizens because the regulation also came into force in Germany.

JURISDICTION

If an application for divorce is filed before the court of a Member State, that court is also competent to deal with matters relating to matrimonial property regime. In other cases, jurisdiction is based on the applicant’s habitual residence criterion provided that he has been there for at least one year directly prior to the filing of the application. If the applicant is a national of that Member State, this period would be 6 months. If no jurisdiction due to the mentioned criteria has been determined, the court of the Member State whose nationality both spouses have at the time of the referral to the court, will have the jurisdiction. By way of exception, the courts of a Member State in which the immovable property of one or both of the spouses is located have jurisdiction. However, this court may only decide on immovable property.

APPLICABLE LAW

The entire property of the spouses, irrespective of their location, is governed by the law applicable to the matrimonial property regime. The spouses may determine the law applicable to their matrimonial property regime by agreement: either the law of the State in which both or one of the spouses have his / her habitual residence at the time of the choosing the law or of the State of which nationality belongs to one of the spouses at the time of the choosing the law. Under the current Croatian Family Law, in case of divorce, the assets acquired during marriage are divided equally between the spouses. Should these provisions be more favorable to the spouses than provisions of other countries, that is how choice of law will be applied in practice.

If no choice of law has been made, the matrimonial property regime shall be governed by the law of the country in which the spouses have their first common habitual residence after the marriage, of which both spouses are nationals at the time of marriage or by the law with wich the spouses, taking into account all circumstances at the time of the marriage, are the most closely connected to.

The requirements for the registration of immovable assets in the Land Registry and Cadaster are not affected by this Regulation. Even if a decision is made on the matrimonial property regime in Germany, it must meet the requirements of the Croatian land register law to obtain a registration in the Croatian Land Registry.

RECOGNITION AND ENFORCEMENT OF DECISIONS

The decisions given in one Member State are recognized in the other Member States without any special procedure. The decisions given in one Member State are enforceable in another if they have been declared enforceable there. Member States will notify the competent authority of the enforcement order by January 2019.